BOSTON (CN) — A panel of First Circuit judges appeared extremely reluctant Wednesday to wade into two challenges of Maine executive orders limiting tourism and church services during the pandemic.
In both cases the judges appeared to be looking for a technicality that would let them avoid making a decision on Governor Janet Mills’ orders, but they also suggested that, if they did make a ruling, they would side with Mills.
“The paramount consideration here has to be the health and safety of the people of Maine,” said U.S. Circuit Judge Bruce Selya, a Reagan appointee.
In the tourism case, Mills issued an order in early April that no visitors can enter the state unless they quarantine for the next 14 days, and they couldn’t stay at a hotel or other commercial lodging facility to do so. In effect, the order banned anyone from entering Maine who didn’t own or rent a home there.
The order was challenged by a group of would-be tourists and owners of lodging facilities who claimed that it violated their rights to travel and to due process. A federal judge refused to enjoin the order.
More recently, though, the state has allowed tourists if they can show that they had a negative Covid test within the last three days. The judges suggested that this made the case moot.
“What is the need for an injunction?” asked U.S. Circuit Judge David Barron, an Obama appointee.
Selya added: “It seems to me that there’s nothing to preliminarily enjoin.”
The plaintiffs’ lawyer, Tyler Smith of Libby O’Brien in Kennebunk, Maine, said an injunction was necessary to make sure Mills didn’t “return to her earlier ways,” especially since there might be a testing backlog once school starts.
But the court suggested that it would side with the state in any event.
“I’m failing to see what the argument is” that the lodging owners’ rights “outweigh the public interest,” said Barron.
Selya told Smith: “I understand that your clients have rights, but so do all the residents and visitors in Maine.”
And U.S. Circuit Chief Judge Jeffrey Howard, a George W. Bush appointee, said: “The way I see it, the public interest weighs the other way” in favor of the state.
Arguing for the governor, Christopher Taub of the state attorney general’s office emphasized that the tourism limitations were necessary to keep the Maine health care system from being overwhelmed.
“We are a state of 1.3 million people with a health care system designed for that,” said Taub. “We have a limited number of critical care beds and a limited number of ventilators. And in a typical year we get as many as 20 million tourists.”
In the religion case, the Calvary Chapel of Bangor is challenging Mills’ prohibition on gatherings of more than 10 people — later revised to 50 — as violating its First Amendment rights.
As with the tourism case, a federal judge refused to issue a temporary restraining order against Mills’ order. Although both the church and the state strongly urged the First Circuit to rule on the merits, the judges seemed inclined to punt the case because the lower court never formalized its ruling as a preliminary injunction.
The TRO hearing was based on nothing more than a conference call, Selya noted. “There were no witnesses, no exhibits and no transcript,” he complained.
Both lawyers pointed out that the judge had issued a 23-page ruling, which they said should be enough for the court to review.
But Selya responded extremely sarcastically. “Don’t you think that judges are sometimes, just maybe sometimes, swayed by evidence and witnesses?” he asked.
Taub pointed out that courts often ignore jurisdictional problems and rule on the merits if the case is uncomplicated.
Selya was amazed, given that this was a First Amendment challenge. “Did you just say ‘uncomplicated?’” he asked.
Howard agreed. “I’m with Judge Selya. I’m not so sure we should be so quick to jump into this,” he said.
But once again the court suggested that if it did reach the merits, it would side with the state.
“I don’t follow what the free exercise challenge is. I’m just not getting that,” said Barron.
A key issue is whether the limit on gatherings is a rule of “general applicability” as opposed to one that singles out and discriminates against religion.
The church’s lawyer, Roger Gannam, an assistant vice president of the group Liberty Counsel, argued that the law was discriminatory because the church would be allowed to host an unlimited number of people for social services such as unemployment or drug counseling but could be criminally charged if the same group of people then sang a hymn or listened to a sermon.
But “that’s not an argument that the order is not one of generally applicability,” Barron rejoined. “That’s just an argument that you don’t think there’s any sense to it.
“You can have a law that it’s OK to smoke a cigarette but not OK to smoke peyote,” Barron continued. “That might make no sense, but it doesn’t mean you don’t have a law of general applicability.”
Gannam replied that drug counseling and worship are “identical conduct” in terms of the risks they pose, so “there’s no religious neutrality.”
But Barron was unconvinced. “If I want to get 25 people together for a book club, I can’t do that,” he observed. “The criteria are not singling out religion.”